Allowed

K.K.Ibrahim, v. M/S.Cochin Kaagzar Limited,(Ckl)

Kerala HC19 Feb 2020AR/107/2019

Case brief

AI extract

What is this about?

The Court disposed of two joined applications for appointing an arbitrator arising from a dispute under a Memorandum of Understanding. Relying on Duro Felguera, the Court exercised its discretion under Section 11 to appoint a sole arbitrator.

What did the court decide?

Appointment of Justice Sri.Abraham Mathew as sole Arbitrator; discovery statement required; fees shared equally.

K.K.Ibrahim, Vs M/S.Cochin Kaagzar Limited,(Ckl) — Arbitration | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

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AR.No.100 OF 2019

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APPLICANT/S:

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COCHIN KAGAZ LTD.,(CKL), REGISTERED OFFICE AT KARUKUTTY.P.O, ANGAMALY-683576, ALUVA, ERNAKULAM DISTRICT, KERALA, REPRESENTED BY ITS MANAGING DIRECTOR SRI.N.C.RAVIKUMAR

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BY ADVS. SRI.S.EASWARAN P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE

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RESPONDENT:

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K K IBRAHIM SON OF K.K.KASIM, KAROTHUKUDY HOUSE, PALLIPPURAM KARA, MARAMPILLY VILLAGE, MUDICAL.P.O., KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-683547

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R1 BY ADV. SHRI. SAYED MANSOOR BAFAKHY THANGAL

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THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 19.02.2020, ALONG WITH AR.107/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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AR.Nos.100 & 107 OF 2019 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

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AR.No.107 OF 2019

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APPLICANT:

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K.K.IBRAHIM, S/O KASIM KARUTHOKUDY HOUSE, PALLIPURAM KARA, MARAMPILLY VILLAGE, MUDICKAL P.O., PERUMBAVOOR, PIN - 683 547.

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BY ADVS.

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SHRI. SAYED MANSOOR BAFAKHY THANGAL SMT.SANU S MALAKEEL

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RESPONDENTS:

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1 M/S.COCHIN KAAGZAR LIMITED,(CKL) KARUKUTTY P.O., ANGAMALY, ALUVA TALUK, ERNAKULAM, PIN - 683 576 REPRESENTED BY ITS MANAGING DIRECTOR SRI. NALLAMUTHU CHANDRAN, M/S.COCHIN KAAGAZ LIMITED,(CKL), KARUKUTTY P.O., ANGAMALY, ALUVA TALUK, ERNAKULAM, PIN - 683 576

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2 SRI. NALLAMUTHU CHANDRAN, MANAGING DIRECTOR, M/S.COCHIN KAAGZ LIMITED,(CKL), KARUKUTTY P.O., ANGAMALY, ALUVA TALUK, ERNAKULAM, PIN - 683 576

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THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 19.02.2020, ALONG WITH AR.100/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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AR.Nos.100 & 107 OF 2019 3

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ORDER

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These applications are filed under Sections 11(5) and 11(6) of the Arbitration and Conciliation Act, 1996 (‘Act 3 of 2016’ for short) seeking for the appointment of an arbitrator to resolve the disputes that has arisen between the parties.

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As both parties have filed separate applications seeking the very same prayer, these applications are taken up and disposed of together.

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The applicant in A.R.No. 100 of 2019 is a company registered under the Companies Act, 1956. The respondent is the Proprietor of Karothkuzhy Plastics. Annexure-A1, Memorandum of Understanding was entered into between the applicant and the respondent as per which, the respondent agreed to purchase and the applicant herein agreed to sell scrap and machinery kept in the company premises of the applicant. Later disputes arose between the parties and both allege that the rival party has violated the terms of the understanding.

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Heard Sri P.Viswanathan, the learned Senior counsel appearing for the applicant as instructed by Shri. Sayed Mansoor Bafakhy Thangal the

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AR.Nos.100 & 107 OF 2019 4

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learned counsel and Sri.S.Easwaran, the learned counsel appearing for the respondent.

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I have considered the submissions advanced. Annexure-AI is

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the memorandum of understanding between the parties. Clause 12 of Annexure-AI deals with arbitration which reads as follows:

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“Whereas both the parties to this Memorandum of Understanding agree (sic) in case of any differences or disputes among the parties, it shall be resolved amicably by way of negotiations and it shall be referred to Arbitration under the provisions of Arbitration and Conciliation Act, 1996 amended up to.”

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As held by the Apex Court in Duro Felguera S.S. v. Gangavaram Port Ltd.¹ in view of Section 11(6A) of the Act, all that is required to be seen is whether the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement. These applications are only to be allowed. I am therefore required to exercise my discretion under Section 11 and make an appointment of a Sole Arbitrator. The following order is passed:

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(a) I nominate Justice Sri.Abraham Mathew, Former Judge of this Court, Kandathil, Near Satellite Township, Padamugal, Kakkanad P.O, Kochi-682 030 as sole Arbitrator to decide the dispute and differences between the parties arising from

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1 [2017 (9) SCC 729]

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AR.Nos.100 & 107 OF 2019 5

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Annexure-A1 dated 31.01.2017.

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(b) A copy of this order shall be communicated to the learned Sole Arbitrator by the Advocate of the applicant within a period of one week from today. A copy of the order shall also be forwarded to the learned Sole Arbitrator in the address shown in the list of panel of Arbitrators.

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(c) The Arbitrator is requested to forward his statement of disclosure under Section 11(8) r/w. Section 12(1) of the Act 3 of 2016. The disclosure statement shall be placed before this Court for confirmation of the appointment of the Arbitrator. The Registry shall retain a copy of the original.

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(d) The Arbitrator's fees shall be governed by the Kerala High Court (Fee Payable to Arbitrators) Rules, 2017. Both parties agree that the Arbitration costs and fees shall be shared equally.

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These applications are allowed .

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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IAP

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AR.Nos.100 & 107 OF 2019 6

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APPENDIX OF AR 100/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1	COPY OF MEMORANDUM OF UNDERSTANDING DATED 31.01.2017 EXECUTED BETWEEN THE PARTIES
ANNEXURE AII	COPY OF LAWYER NOTICE DATED 3.7.2019 SENT ON BEHALF OF THE APPLICANT TO THE RESPONDENT
ANNEXURE AIII	COPY OF REPLY NOTICE DATED 17.08.2019 SENT ON BEHALF OF THE RESPONDENT TO THE COUNSEL OF THE APPLICANT
ANNEXURE AIV	COPY OF ORDER DATED 7.6.2019 IN IA NO.149/2019 ISSUED BY THE ADDITIONAL SUBORDINATE JUDGE OF NORTH PARUR

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AR.Nos.100 & 107 OF 2019 7

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APPENDIX OF AR 107/2019

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 THE TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 31-01-2017 ENTERED INTO BETWEEN THE APPLICANT AND THE 1ST RESPONDENT. ANNEXURE A2 THE TRUE PHOTOSTAT COPY OF NOTICE DATED 0307-2019+ ISSUED TO THE APPLICANT. ANNEXURE A3 THE TRUE PHOTOSTAT COPY OF THE REPLY NOTICE DATED 17-08-2019. ANNEXURE A4 THE TRUE PHOTOSTAT COPY OF NOTICE DATED 0310-2019.

K.K.Ibrahim, v. M/S.Cochin Kaagzar Limited,(Ckl)

Case brief

What is this about?

What did the court decide?

K.K.Ibrahim, v. M/S.Cochin Kaagzar Limited,(Ckl)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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